Bill C-2 (39th Parliament, 1st Session) Committee on June 5th, 2006

[Rob Walsh]

Mr. Martin, if you didn't build a house right and there was an ability to take you to court and have you demonstrate that you built a house wrong, I don't think as a carpenter you would like that. I'm not sure if you are a carpenter, Mr. Martin, but if you're a builder and you don't build right, and you can be taken to court to demonstrate how you did build right, you'd lose a lot of money spending time in court and not building.

In the same manner, if parliamentarians or the Ethics Commissioner have to spend a lot of time in court to explain why they did what they did and it was all kosher, then you're not doing your day job. That's all I'm saying. And you have the uncertainty of what it is we decided when we had that vote. We don't know any more because we have a challenge to some of the people who voted on one side. We don't know whether their vote was valid. What did we decide, and what does that mean to the consequences of that vote?

Subsequent actions were taken based on something being adopted in the House, but we don't know whether that vote is valid because the process is in the court. So we've got to wait until that's sorted out. And then we find out whether that minister's or that parliamentary secretary's vote stands or doesn't stand.

I don't know. It's just the uncertainty that comes to me as a lawyer, saying, come on, let's clean this up. This is a recipe for a lot of confusion and uncertainty, which shouldn't bother me as a lawyer because it's a job for life, but at the same time, it's not good parliamentary practice.

[Pat Martin, NDP, Winnipeg Centre, MB]

You also pointed out the appointment processes.... They're not appointed by either house; they're appointed by Governor in Council. You identified that as an issue, so the appointment—

[Rob Walsh]

Legally, the appointment is made by Governor in Council, but its statute requires as a condition before that that the House approve the appointment. But it doesn't happen legally until the order in council is made. That's part one of the indices of being in an executive-type position. But that's not to suggest the government is going to have inordinate or inappropriate control of the appointee. There's a difference between legal and parliamentary.

[Pat Martin, NDP, Winnipeg Centre, MB]

Okay. That may be something that will come to me in the second round. Thank you.

[The Chair, Conservative, David Tilson]

Thank you, Mr. Martin.

Mr. Rob Moore.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you, Mr. Chair, and thank you for being here. We certainly appreciate the advice you've provided, Mr. Law Clerk.

We've heard some of the conversation over the last little while from the committee, and some members have been a bit alarmist. You've heard that there is some sort of constitutional crisis or that this is somehow immoral. I just want to put it a bit into perspective.

When the Minister of Justice and Attorney General of Canada deals with any piece of justice legislation, for example, there will always be witnesses who appear saying that this provision or that may or may not be constitutional, that there may or may not be a challenge at some point in the future, that there may be some hypothetical court case. We take that advice, and as parliamentarians it's our job to enact legislation. That's something we're used to. Anyone who has ever sat on any committee dealing with any subject matter knows there is always the possibility that some piece of that legislation could end up in court.

Also, there's been a great deal made about your particular office and your not being consulted, but I guess from the evidence I've heard from you today, it wouldn't be the normal practice with any piece of legislation that a department would call you up to say it was thinking about a piece of legislation and to ask what you thought about it.

Nonetheless, we hear members say “immoral” as though there's some constitutional crisis. From the evidence I've seen you provide, I don't think that's the case. For one thing—this has already been quoted a number of times—you say:

Notwithstanding our view that some of the proposals of Bill C-2 are contrary to the Constitution as they fail to respect the constitutional position of the House, it is not unconstitutional to enact legislation that limits the constitutional privileges of the House.

Also, today you've mentioned that of any potential flaws you see, most are curable. To get to the specifics, in the interests of working to have a bill that's a good piece of legislation and a House that stands, how many amendments would you be talking about? What specifically would you like to see changed, and what are we talking about, as far as time goes, to make those few amendments?

[Rob Walsh]

I believe, Mr. Chairman, that my office can have available to any member who asks for them amendments reflecting the concerns raised in this report and have them available for the member tomorrow. I haven't counted how many there would be.

It could be 40, the deputy law clerk tells me.

We didn't, by the way, mean by this report to suggest that we were facing a constitutional crisis here. I don't think you'll find—

[Rob Moore, Conservative, Fundy Royal, NB]

I wouldn't suggest you have said that. Some people have taken a report and run with it and have suggested there is a constitutional crisis. My point is it doesn't seem to be what you've suggested.

In some of the examples I've seen, from what you've pointed out, you would prefer clarity. In other words, where we may not amend specifically the Parliament of Canada Act to achieve a certain end, you would prefer to see that particular act amended, and so on. But some of this is a preference in drafting or a preference in approach, not necessarily some sort of fatal flaw.

[Rob Walsh]

Well, it's more than that.

There are procedural rules about how you draft bills, so I can't draft as I would like to, cutting from whole cloth. You have to draft based on the bill you have in front of you, so you have to go where the procedural rules allow you to go. That doesn't always have us going to our preferred spot. But there are ways of doing it so as to enable it to happen.

But, Mr. Chairman, I wish to point out, since I think it is implied in the member's question, that I'm not crying fire here—or wolf, or whatever the expression is—but I feel duty bound on behalf of my client, which is the House of Commons, its committees, and the members of Parliament, to apprise them of what I see happening that they may not otherwise be aware of. This is what we've done by this report.

It's certainly up to the committee to choose whether it will do anything at all, or how much it will do, or whether it will do everything we're suggesting. That's entirely a matter within the committee's discretion. But I felt professionally and legally obliged to bring to your attention those matters that concern me as the legal adviser to the House and its committees and to members of Parliament.

[The Chair, Conservative, David Tilson]

Mr. Poilievre.

[Pierre Poilievre, Conservative, Nepean—Carleton, ON]

I'm pleased also to hear that, as I originally expected, and in your words, there is no constitutional crisis here and that all of the problems you've pointed out can be resolved through amendment, and that you can produce those amendments within 24 hours, you're saying—

[Rob Walsh]

But not all. Section 49 is a problem.

[Pierre Poilievre, Conservative, Nepean—Carleton, ON]

Except for section 49.

What remedy do you propose for section 49?

[Rob Walsh]

I think you have to make a constitutional amendment, and that's not something you can do overnight, relative to the timelines of this bill. I think the only solution is to remove the provision pertaining to secret ballots.

[Pierre Poilievre, Conservative, Nepean—Carleton, ON]

That in itself is an amendment that could be.... Again, what I said originally was accurate: every problem you have with this bill could be amended in clause-by-clause consideration.

On the 40 amendments, are they all substantive or are some of them resulting from other parts of your amendment package? How many substantive changes to the bill are you talking about?

[Rob Walsh]

They're all substantive, I might say, but some of them might be consequential to other--

[Pierre Poilievre, Conservative, Nepean—Carleton, ON]

Yes, but how many are consequential and how many are original?

[Richard Denis, Deputy Law Clerk and Parliamentary Counsel, House of Commons]

Mr. Chair, for example, if we look at deleting the provisions dealing with the secret ballot, we'd be looking at close to 10 amendments, but they're all dealing with the same thing.

[Pierre Poilievre, Conservative, Nepean—Carleton, ON]

It's all dealing with the same thing, so how many are original, roughly? You don't have to be totally precise.

[Richard Denis]

Maybe 15 topics.

[Pierre Poilievre, Conservative, Nepean—Carleton, ON]

Fifteen amendments.

For the benefit of those who have not been through clause-by-clause, 15 amendments can be done in a good part of an hour and a half.

I'm very pleased with your testimony today because it really does show that we're not dealing with a big crisis. You have roughly 15 changes, all of which could be done in a total of about an hour and a half. I think that's good news for Canadians because it means we can get them accountability and get them an accountability act by the summer.

Thank you.

[The Chair, Conservative, David Tilson]

Ms. Jennings.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

Thank you very much.

Notwithstanding the eagerness of our colleagues on the other side of the House, on the government side, to simply sweep aside parliamentary privilege and the constitutional autonomy of Parliament that has existed for over a century, going into two centuries.... You are in fact the parliamentary counsel and the law clerk. You have clearly made the point in your brief that some aspects of Bill C-2 would in fact impede on parliamentary privilege and the constitutional position of the House and its members. You then state that if the House wishes its parliamentary privilege and constitutional position to be subject to Bill C-2 as it now stands, it needs a clarification, and you can show us or provide us with an amendment.

On the other hand, if the House and its members decide they do not wish to throw close to 200 years of tradition out the window, there's a different amendment that can be put into place. My question to you, as the legal adviser to Parliament, specifically to the House of Commons, is what advice do you give to the members of this committee as to which option we should choose?

When I go to a lawyer and I pay a lawyer, I expect the lawyer to put out all of the various options, with the pros and the negatives. Then I expect my lawyer, whom I'm paying, to come up with a recommendation. You have option one: here are the pros, here are the cons; option two: pros and cons; option three: pros and cons. I recommend you go with option two.

Do you recommend to the members of this committee that we throw parliamentary privilege and the constitutional position of the House and its members out the window, subject to the Conflict of Interest Act, as it is now stipulated, or do you recommend that we maintain parliamentary privilege and the constitutional position of the House and its members as it now stands, in which case it would require a different amendment?

[Rob Walsh]

Mr. Chairman, as the lawyer for the House of Commons, members of Parliament, and committees, naturally my view would be in favour of the interests of that institution. The short answer to the member's question is that I don't think you should play around with your privileges, and you should sustain them.

Over the weekend, I had occasion to read a definition, if I can share it with the committee, of “ecology”. It said in this definition that it's a branch of biological science that studies organisms' relations to one another and to their surroundings. Planet Earth is a type of community of life characterized by interdependence and delicate balance; a deeper understanding of this has been accelerated by environmental deterioration.

I was struck by the parallel. That statement, with a few artful substitutions of words, gives a description, in my view, of what this committee is facing. I will read it to you with the changes.

Parliamentary powers, privileges, and immunities is a branch of political science and law that studies the constitutional relations of the three branches of government--executive, legislative, and judicial--to one another and to their surroundings. The House of Commons is part of a constitutional community of life, characterized by interdependence and delicate balance. A deeper understanding of this has been accelerated by environmental deterioration.

What we have here, Mr. Chairman, in my view, is the danger that over time and going into the future the parliamentary environment may deteriorate. They say a fish doesn't see the water it swims in. Members of Parliament come to a committee like this one. They're looking at conflict of interest. They're looking at members' trust. They're looking at a director of public prosecutions. They're looking at the substantive matters relative to public policy. They're not thinking about their privileges; they're not thinking about the institution. That's why I had to get off my hands and come to the committee as I have done.

I don't know if this is an answer to the member's question, but I'm talking about your working environment; I'm talking about the air that you breathe. You can neglect it and carry on and adopt provisions without regard to privilege, and some day one or two or several of you might find that you haven't got the privilege that you thought you had in some circumstances.

In the last Parliament, we had, under the current ethics regime, as some of you will remember, some very serious difficulties between a couple of members and the regime as it was applied against them. We had in one case a minister who, in my view, suffered a political assassination when charges were made and she lost her cabinet position, and later the allegation made against her was proven to be bogus. We had another member whose family suffered as a result of the process.

This is serious business when you're talking about legal proceedings that can be brought against a member of Parliament on some allegation about a possible conflict. It's important, I feel, on your behalf as your lawyer, to say to you, think twice about what you're doing here. You're here, in my view, to serve--and God forgive me, because now I'm talking like I'm lecturing and it's not my place to be doing that--in the constitutional environment that's been provided to you, in the interests of the people of Canada, and they want you here freely to do it.

I noticed the other day, that section 463 of the Canada Elections Act says that if a certain form isn't filed, a certain document, the member can't sit or vote. The constitutional panoply of electing someone to come to this House to represent his electors, to speak and address the major issues of the day--that's all subordinated by filing a certain document? Somehow, filing a certain document--a regulatory requirement--can't be enforced except by denying that member his participation in the democratic institution he was elected to and for which he represents his people? To me there's a confusion of priorities there.

I'm speaking with the bias of parliamentary counsel. I'm not speaking against this bill. I'm speaking about issues relating to your working environment; I'm speaking about the air that you breathe, the water that you swim in, and I'm asking that you have your eyes open as you swim through it. If you want to compromise your privileges, you're perfectly entitled to do so.

[The Chair, Conservative, David Tilson]

Okay, you'll have to wait for another round if you want to continue.

Mr. Poilievre, go ahead, please.